CASE OF KHAYROV v. UKRAINE

FIFTH SECTION

CASE OF KHAYROV v. UKRAINE

(Application no. 19157/06)

JUDGMENT

STRASBOURG 

15 November 2012

FINAL

15/02/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Khayrov v. Ukraine,

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:

Dean Spielmann, President,
Mark Villiger,
Karel Jungwiert,
Boštjan M. Zupančič,
Angelika Nußberger,
Paul Lemmens, judges,
Stanislav Shevchuk, ad hoc judge,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 16 October 2012,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 19157/06) against Ukraine lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Ramil Kamilyevich Khayrov (“the applicant”), on 26 April 2006.

2. The applicant was represented by his brother, Mr Rail Khayrov. The Ukrainian Government (“the Government”) were represented by their Agent, Mr. N. Kulchytskyy.

3. The applicant alleged, in particular, that he had been ill-treated after his arrest and that there had been no effective investigation on that account. He further complained of violations of the privilege against self-incrimination, the right to have a lawyer and the right to examine a witness. The applicant also complained of a lack of medical treatment during his detention.

4. On 14 February 2011 the application was communicated to the Government. Mrs G. Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). The President of the Chamber decided to appoint Mr Stanislav Shevchuk to sit as an ad hoc judge (Rule 29 § 1(b)).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1968 and is currently serving a prison sentence.

A. Criminal proceedings against the applicant

6. On the evening of 3 March 2004 the applicant and two of his acquaintances, H. and L., had a party in L.’s flat. They drank large quantities of alcohol. At some point a fight broke out among them, which resulted in H. being stabbed and suffocated.

7. At about 10 p.m. that evening the police found the body of H. in the flat. They also found the applicant drunk and asleep in the flat. The police decided to arrest the applicant on suspicion of having killed H.

8. At the police station the applicant was given an explanation of the provisions of Article 63 of the Constitution and then questioned on account of the incident. The applicant stated that during the party he was repeatedly humiliated by H. At certain point the applicant lost his patience and started to beat H. to the extent that H. lost his consciousness. However, L. considered that it had not been enough for H. and killed him. After that L. left the flat and the applicant fell asleep. The questioning session was carried out by police officers without a lawyer being present.

9. At 2.30 a.m. on 4 March 2004 an investigator from the prosecutor’s office prepared an arrest report in respect of the applicant. The applicant’s defence rights were explained to him by the investigator, including the right to remain silent and the right to have a lawyer. The applicant signed the relevant explanatory note stating that he did not need the assistance of a lawyer. The investigator accepted the waiver of legal assistance by issuing a separate ruling. The ruling provided that the applicant had refused legal assistance as he did not need it and entirely trusted the investigative authorities.

10. According to the applicant, that waiver was given by him as a result of psychological pressure exercised by the police officers.

11. Between 9.30 a.m. and 10.55 a.m. on 4 March 2004 the applicant was questioned by the investigator. The applicant stated that it had been L. who had killed H.

12. At 12.50 p.m. on 4 March 2004 the investigator arrested L. on suspicion of having killed H. During questioning, L. explained that he had gone out of the flat to buy some more alcohol and, while he was away, the applicant had killed H.

13. According to the applicant, on 6 March 2004 he was beaten up by police officers for the first time with the purpose of making him confess to the murder of H. The applicant felt ill and therefore demanded a medical examination.

14. On the same date a forensic medical expert examined the applicant. According to the report issued by that expert, the applicant had sustained an abrasion to his chest, which was considered to be a light injury that could have been inflicted seven to ten days before the examination; and during the examination the applicant had stated that he had had a fight with H. and that after his arrest he had not been beaten by anyone.

15. Again on the same date the Bakhchysaray District Court (the “District Court”) ordered the applicant’s pre-trial detention for two months.

16. On 7 March 2004 the applicant confessed to the murder. According to the applicant, he wrote the confession after he had been beaten up by a police officer again.

17. On the same date the investigator carried out a confrontation between the applicant and L., in the course of which the applicant admitted his guilt. Following this investigatory action L. was released.

18. The investigator further questioned L.’s acquaintances, the seller of the alcohol, and other individuals who might have known something about the events in question. Expert examinations were carried out. The knife did not have any fingerprints on it.

19. On 13 March and 26 April 2004 the applicant was questioned as an accused. He stated that he did not need a lawyer at that time and referred to his statements given during the confrontation with L.

20. On 27 April 2004 the investigation was completed and the case was sent to the District Court for trial.

21. On 14 June 2004 the applicant complained to the prosecutor’s office on account of ill-treatment by the police officers. In his complaint the applicant alleged that immediately after his arrest he had been beaten up by the police officers, who had also threatened to kill him. Allegedly, they had further forced him to confess to the murder.

22. On 6 July 2004, at the request of the applicant, his brother was admitted to the proceedings as defence counsel.

23. When examined by the District Court, the applicant denied any involvement in the crime. He stated that he had been subjected to ill-treatment and that his right to a lawyer had been breached. According to the applicant, he also orally requested that L. be examined by the court. The request was refused.

24. During the trial the District Court examined the evidence in the file. It did not question L. but read out his statements given during the pre-trial investigation.

25. On 8 July 2004 the District Court found the applicant guilty of having murdered H. and sentenced him to ten years’ imprisonment. In its findings the District Court relied on the applicant’s confession and the other self-incriminating statements given by him during the investigation. It also referred to L.’s statements given during the investigation, including those given at the confrontation with the applicant, to the forensic medical examination establishing the cause of H.’s death, and to other indirect evidence.

26. The applicant appealed, claiming that the District Court had failed to assess the evidence properly and had misinterpreted the facts. In particular, the applicant asserted that the District Court had failed to pay due attention to the fact that his submissions during the trial had contradicted L.’s statements and that it had not considered whether L. might have committed the murder. The applicant further contended that his self-incriminating statements had been obtained through ill-treatment and in breach of his right to legal assistance. He asserted that his ill-treatment had been evidenced by the forensic medical report of 6 March 2004.

27. On 5 October 2004 the Court of Appeal of the Autonomous Republic of Crimea (“the Court of Appeal”) considered the applicant’s appeal and dismissed it as unsubstantiated. According to the applicant, during the appeal proceedings he was assisted, in addition to the assistance provided by his brother, by a legal-aid lawyer.

28. In its decision the Court of Appeal noted that the applicant’s guilt had been well established by the District Court and his contention of having been ill-treated by the police was unfounded. In particular, the forensic medical report of 6 March 2004 suggested that the abrasion on his chest had been sustained well before his arrest. As to the absence of legal assistance during the investigation, the court noted that the case file contained waivers of the right to legal assistance signed by the applicant.

29. The applicant appealed on points of law, claiming in particular that: he had been beaten up by police officers to make him confess to the murder; his defence rights had not been assured during the investigation; the lower courts had failed to question all the witnesses and had not examined all the material and documentary evidence; and the courts had not verified whether L. might have committed the murder.

30. On 17 July 2005 the prosecutor’s office refused to open an investigation in respect of the alleged ill-treatment of the applicant.

31. On 22 November 2005 the Supreme Court considered the applicant’s appeal on points of law and dismissed it as unsubstantiated. It found that the trial court had legitimately convicted the applicant on the basis of his self-incriminating statements, which had been further corroborated by L.’s statements and other indirect evidence. The Supreme Court did not find any procedural violations which could give grounds for quashing the decisions of the lower courts.

32. On 6 June 2006 the applicant asked the Supreme Court for an extraordinary review of his case.

33. On 22 June 2006 the request was refused.

B. The applicant’s treatment for tuberculosis during his detention

34. Following his arrest on 3 March 2004, the applicant was placed in the Bakhchysaray Temprorary Detention Centre (“the ITT”), where he was allegedly held with other detainees suffering from tuberculosis.

35. On 10 March 2004 the applicant was diagnosed with infiltrative tuberculosis of the upper part of the right lung.

36. On 16 March 2004 the applicant was transferred to the Simferopol Pre-Trial Detention Centre (“the SIZO”).

37. On 5 April 2004 the applicant was diagnosed with tuberculosis of the right lung and registered as a patient at the tuberculosis dispensary.

38. On 27 April 2004 the doctor recommended that the applicant be provided with anti-tuberculosis treatment at a specialised hospital. The applicant stayed in the SIZO, where he was examined and treated at the medical unit.

39. On 23 November 2004 the applicant was moved to Simferopol no. 102 Prison (“Simferopol Prison”), where he was regularly X-rayed and provided with the following courses of medical treatment:

- from 1 April to 31 May 2005 (treatment with isoniazid);

- from 20 September to 10 October 2005 (treatment with isoniazid);

- from 3 March to 31 May 2006 (treatment with isoniazid);

- from 1 September to 30 November 2006 (treatment with isoniazid and pyrazinamide);

- from 3 March to 31 May 2007 (treatment with isoniazid and pyrazinamide);

- from 3 September to 30 November 2007 (treatment with isoniazid and pyrazinamide);

- from 3 March to 30 May 2008 (treatment with isoniazid and ethambutol);

- from 1 September to 28 November 2008 (treatment with isoniazid and ethambutol);

- from 2 March to 29 May 2009 (treatment with isoniazid and ethambutol);

- from 3 September to 30 November 2009 (treatment with isoniazid and ethambutol);

- from 3 March to 31 May 2010 (treatment with isoniazid and ethambutol); and

- from 1 October to 28 November 2010 (treatment with isoniazid and ethambutol).

40. According to the Government, the applicant was X-rayed on 5 August 2010 and his chest did not display any signs of disease.

II. RELEVANT DOMESTIC LAW

Constitution of 28 June 1996

41. The relevant provisions of the Constitution read as follows:

Article 59

“Everyone has the right to legal assistance. Such assistance is provided free of charge in cases envisaged by law. Everyone is free to choose the defender of his or her rights.

In Ukraine, advocacy acts to ensure the right to mount a defence against an accusation, and to provide legal assistance during the determination of cases by courts and other State bodies.”

Article 63

“A person shall not bear responsibility for refusing to testify or to explain anything about himself or herself, members of his or her family or close relatives in the degree determined by law.

A suspect, an accused, or a defendant shall have the right to mount a defence.

A convicted person shall enjoy all human and citizens’ rights, except for the restrictions determined by law and established in court judgments.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF ILL-TREATMENT BY THE POLICE

42. The applicant complained under Article 3 of the Convention that following his arrest he had been ill-treated by police officers and that there had been no effective investigation in that respect.

43. Article 3 of the Convention reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

A. The parties’ submissions

44. The Government submitted that the applicant had failed to exhaust domestic remedies because he had not challenged, either before the courts or a superior prosecutor, the decision of 17 July 2005 by which the prosecutor’s office had refused to open an investigation in connection with his allegations of ill-treatment.

45. The Government further asserted that the complaint of a substantive violation of Article 3 of the Convention was not supported by any evidence. The applicant’s reference to the forensic medical expert’s report of 6 March 2004 was irrelevant, as the report had only evidenced a light injury which had clearly pre-dated the time of his arrest and detention. Moreover, his complaints to the domestic authorities and the Court had been too vague and inconsistent.

46. As regards the procedural limb of Article 3 of the Convention, the Government contended that the applicant had not raised any arguable complaint of ill-treatment before the domestic authorities which would have required them to carry out an effective investigation in accordance with Article 3 of the Convention. They emphasised that the allegations made before the domestic authorities had been very general and wholly unsubstantiated. Moreover, the absence of any evidence of ill-treatment had been subsequently confirmed by the enquiries carried out by the prosecutor’s office and the domestic courts.

47. The applicant disagreed with the Government’s statements. He maintained that he had not been able to challenge the decision of 17 July 2005, as he had not been informed of it. He further insisted that he had lodged many complaints with the domestic authorities on account of his ill-treatment. He had not described the alleged ill-treatment in detail as he had considered it unimportant. Nevertheless, the issue had been raised before the domestic authorities and the rule of exhaustion of domestic remedies had been complied with.

48. The applicant further claimed that he had been ill-treated on 6 and 7 March 2004 and that the expert’s opinion of 6 March 2004 had wrongly determined the time when he had sustained the chest injury.

49. He also argued that the domestic authorities had failed in their obligation to carry out an effective investigation of the matter.

B. The Court’s assessment

50. As regards the Government’s contention that the applicant failed to challenge the decision of 17 July 2005 by which the prosecutor’s office refused to open an investigation in respect of his allegations of ill-treatment, the Court notes that there is no evidence that the applicant was actually informed of that decision, let alone given a copy thereof. It is therefore doubtful that the applicant could have lodged an appeal against that decision. Moreover, the Court has previously dealt with a similar objection and concluded that the remedies indicated by the Government had not been proved to be capable of providing adequate redress in respect of complaints of ill-treatment by the police (see Kaverzin v. Ukraine, no. 23893/03, §§ 93‑98, 15 May 2012). The Court does not find any reason to hold otherwise in the present case and finds that the applicant was not obliged to use the appeal procedures in question. The Government’s objection in this respect should therefore be dismissed.

51. The Court further notes that the factual issues raised in the present complaint fall within the knowledge of the domestic authorities. Accordingly, it could be accepted that the applicant experienced certain difficulties in procuring evidence to substantiate his allegations. Nevertheless, in such cases applicants may well be expected to submit at least a detailed account of the facts complained of and provide – to the greatest possible extent – some evidence in support of their complaints (see, mutatis mutandis, Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). The Court also recalls that the procedural obligation under Article 3 of the Convention to investigate an allegation of ill-treatment only arises where an individual raises an arguable claim that he has been subjected to ill-treatment prohibited by that provision (see, among many authorities, Assenov and Others v. Bulgaria, 28 October 1998, Reports of Judgments and Decisions 1998-VIII, §§ 102 et seq.).

52. The Court first considers that the applicant’s complaint of ill-treatment has not been sufficiently detailed in his submissions to the Court. He did not elaborate on the nature of the psychological pressure exerted on him and why it was serious enough to amount to ill-treatment prohibited by Article 3 of the Convention. Neither did he lay down the exact sequence of events on 6 and 7 March 2004, the dates on which he was allegedly physically ill-treated. The applicant did not describe with sufficient detail the methods of physical ill-treatment used against him and did not mention the specific circumstances in which the alleged ill-treatment took place.

53. Furthermore, this vague complaint before the Court does not correspond to his complaints of ill-treatment raised before the domestic authorities, which also lacked precision and detail. In particular, in his complaint to the prosecutor’s office of 14 June 2004, which appears to be the most detailed, the applicant submitted that he had been beaten up immediately after his arrest, that is on 3 March 2004, while before this Court the applicant stated that he had been beaten on 6 and 7 March 2004.

54. Besides that, these inconsistent allegations are not supported by any evidence. On the contrary, the medical examination of 6 March 2004, which was carried out at the applicant’s request immediately after the alleged beating on the same day, recorded only one light injury which cannot be attributed to the State as its origin clearly predated the applicant’s arrest. The Court does not find any reason to doubt the credibility of the expert’s findings, especially given that the applicant never questioned the expert’s impartiality at the domestic level. Moreover, it should not be overlooked that the applicant apparently had a serious fight with H. before he came into the hands of the police.

55. Lastly, the material in the file suggests that it was only on 14 June 2004 that the applicant complained for the first time to the domestic authorities on account of the alleged ill-treatment. This delay of more than three months undermined the chances of collecting any evidence in support of physical, let alone psychological, ill-treatment. However, there is no reasonable justification for why the applicant took such a long time to make a complaint.

56. In these circumstances the Court, having regard to the available material, considers that the present complaint is too vague, inconsistent, and unsupported by any evidence. It has not been properly substantiated and developed by the applicant and should be rejected as manifestly ill-founded. The Court further considers that the applicant failed to make an arguable complaint of ill-treatment before the domestic authorities which would trigger the State’s procedural obligation under Article 3 of the Convention to carry out an effective investigation of ill-treatment.

57. Accordingly, the complaint should be rejected as inadmissible, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION ON ACCOUNT OF A LACK OF MEDICAL ASSISTANCE DURING DETENTION

58. The applicant complained that that his medical treatment for tuberculosis had been insufficient during his detention.

59. The Court has decided to examine the complaint under Article 3 of the Convention.

A. The parties’ submissions

60. The Government contended that the applicant had failed to complain to a prosecutor on account of insufficient medical care and thus had not exhausted domestic remedies.

61. They further maintained that the applicant had been provided with adequate medical treatment during his detention and provided medical records in support of their contentions. They emphasised that the applicant could not have been infected with tuberculosis in the ITT, where he had first been diagnosed with tuberculosis, as the incubation period for the tuberculosis bacillus takes from seven weeks to several years, while the applicant had been diagnosed with that illness several days after his arrest.

62. The applicant insisted that he had complied with the rule of exhaustion of domestic remedies, as he had raised the matter before the prison authorities. He further insisted that during his detention in the ITT and the SIZO he had not been provided with adequate medical treatment.

B. The Court’s assessment

63. As to the Government’s plea of non-exhaustion, the Court notes that it has rejected similar objections in a number of other cases, where the complaints concerned problems of a structural nature in the domestic prison system in question (see, for instance, Melnik v. Ukraine, no. 72286/01, §§ 69-71, 28 March 2006; Koktysh v. Ukraine, no. 43707/07, § 86, 10 December 2009; Pokhlebin v. Ukraine, no. 35581/06, §§ 41-42, 20 May 2010; and Logvinenko v. Ukraine, no. 13448/07, §§ 57-58, 14 October 2010). Similarly, in the present case the Court does not consider that the remedy in question could have effectively dealt with the applicant’s complaint. At the same time, the domestic authorities were sufficiently aware of the applicant’s health problems. Accordingly, the complaint cannot be rejected on the ground of non-exhaustion of domestic remedies. The Government’s objection to this effect should be dismissed.

64. The Court further notes that the applicant’s complaint concerning a lack of medical assistance in the ITT and the SIZO refers to the period which ended with his transfer to Simerfopol Prison. Therefore the period of the applicant’s detention prior to 23 November 2004 falls outside the six-month time-limit within which an applicant is required to lodge a complaint (see, for example, Malenko v. Ukraine, no. 18660/03, § 40, 19 February 2009, and Belyaev and Digtyar v. Ukraine, nos. 16984/04 and 9947/05, § 29, 16 February 2012).

65. The Court further notes that the applicant did not extend this complaint to the issue of sufficiency of medical treatment at Simferopol Prison. In any event, the Court is satisfied with the Government’s submissions in this regard and does not find any indication of a violation of Article 3 of the Convention during the applicant’s detention in that prison.

66. In the light of these considerations, the Court dismisses this complaint as inadmissible, pursuant to Article 35 §§ 1, 3 (a) and 4 of the Convention.

III. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (c) OF THE CONVENTION

67. The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he had not been provided with a lawyer at the initial stage of the proceedings.

68. The relevant parts of Article 6 provide as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; ...”

A. Admissibility

69. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties’ submissions

70. The Government submitted that while having his rights under Article 63 of the Constitution explained to him on 3 March 2003, the applicant had not asked to be provided with a lawyer. Moreover, during questioning that day the applicant had not made any self-incriminating statements.

71. The Government further stated that on 4 March 2003 the applicant had expressly refused legal assistance after having had his defence rights explained to him in detail. Subsequently, throughout the investigation, he had confirmed the waiver of his right to a lawyer. Once he had asked the domestic authorities to admit his defence counsel, that request had been granted immediately.

72. The applicant disagreed and contended that his refusals from legal assistance had not been genuine and insisted that he should have been provided with a lawyer as from the first police questioning session.

2. The Court’s assessment

73. The Court reiterates that Article 6 § 1 requires that, as a rule, access to a lawyer should be provided from the first time a suspect is questioned by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such a restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during questioning by police without access to a lawyer are used for a conviction (see Salduz v. Turkey [GC], no. 36391/02, § 55, 27 November 2008).

74. It has not been disputed by the parties that on 3 March 2004 the police brought the applicant to the police station because they suspected him of having committed the murder. The Court, for its part, does not find any indication that the authorities treated him as anything other than a suspect (contrast Smolik v. Ukraine, no. 11778/05, § 54, 19 January 2012).

75. The Court next observes that it was on 3 March 2004 that the police authorities questioned the applicant for the first time on account of the murder.

76. Accordingly, by virtue of the above-mentioned principles of the Court’s case-law, the applicant was entitled to have access to a lawyer as from the interrogation which took place on 3 March 2004. However, there is no indication that he was given access to a lawyer on that date.

77. The Court further reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver’s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II, and Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII). However, on 3 March 2004 the applicant did not sign any document waiving his right to a lawyer. The fact that the applicant was notified of the general principles set out in Article 63 of the Constitution, which predominantly concerns the right to remain silent, is not sufficient for an assumption to be made that the applicant, having failed to expressly assert his right to a lawyer, waived that right.

78. The question therefore is whether the absence of a lawyer was justified by a compelling reason. On the facts, the Court does not find any compelling reason for restricting the applicant’s right to a lawyer during the first questioning of him as a suspect on 3 March 2004. Meanwhile, during that questioning session the applicant made statements which gave serious grounds to consider him at least as an accomplice to the murder. In particular, his statements suggested that he had a motive to kill H. and the applicant’s violent actions in respect of H. supported the existence of that motive. Therefore, in the context of the applicant’s story his final remark that it had been L. who had decided to kill H. could not shade off the applicant. It follows that the initial statements, given by the applicant without a lawyer, affected his position in the further criminal proceedings. Moreover, in the absence of any court ruling as to the role of those statements which were not expressly excluded from the case file, the Court considers that they had a bearing on the applicant’s conviction.

79. The above considerations are sufficient for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention in this respect. In the light of this finding the Court does not need to examine whether the applicant’s right to legal assistance was violated at the subsequent stages of the proceedings.

IV. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION

80. Relying on Article 6 §§ 1 and 3 (d) the applicant complained that the courts had failed to call and examine L. as a witness.

81. The relevant parts of Article 6 provide as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

“3. Everyone charged with a criminal offence has the following minimum rights:

...

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

A. Admissibility

82. The Government submitted that the complaint was not compatible with the Court’s competence ratione personae, in so far as the applicant had failed to show that he was a victim of the alleged violation. They contended that there was no indication that the applicant had asked the trial court to call and examine L. as a witness. Even if the applicant could be considered as a victim of the alleged violation, he had not complained before the higher courts that the trial court had failed to call and examine L. Therefore, the complaint was also inadmissible on the ground of non-exhaustion of domestic remedies.

83. The applicant disagreed and insisted that he was a victim of the alleged violation and that he had sufficiently raised the complaint before the domestic courts.

 84. The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes the person directly affected by the act or omission in issue, the existence of a violation of the Convention being conceivable even in the absence of prejudice (Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999‑VII). In the present case the applicant complained that the domestic courts failed to examine L., who could give a lot of details about the incident which gave rise to the applicant’s prosecution and conviction. The case file suggests that L. was not examined by the courts in person. Therefore, the Court is satisfied that the applicant may claim to be a victim of the alleged violation of his rights under Article 6 §§ 1 and 3 (d) of the Convention.

85. The Court further notes that it is evident from the applicant’s appeals submitted before the higher courts that he was dissatisfied with the fact that L. had not been questioned in court. Before the Court of Appeal the applicant specifically contended that the trial court had failed to pay due attention to the fact that his submissions during the trial had contradicted L.’s statements and that it had not considered whether L. might have committed the murder (see paragraph 26 above). In his appeal on points of law to the Supreme Court, the applicant complained that the lower courts had failed to question all the witnesses (see paragraph 29 above). Given the substance of the applicant’s appeals, the Court considers that the applicant sufficiently raised the present complaint before the higher courts and thus exhausted the domestic remedy in question.

86. For these reasons, the Court rejects the Government’s objections. It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

87. The Government submitted that the applicant had been given an opportunity to question L. at the pre-trial stage during the confrontation which was carried out on 7 March 2004. Therefore, the applicant’s right to examine that witness had not been infringed.

88. The applicant disagreed.

89. The Court reiterates that the right to call witnesses is not absolute and can be limited in the interests of the proper administration of justice. Article 6 § 3 (d) does not require the attendance and examination of every witness on the accused’s behalf; its essential aim, as indicated by the words “under the same conditions”, is full equality of arms in the matter (see Vidal v. Belgium, 25 March 1992, § 33, Series A no. 235-B). An applicant claiming a violation of his right to obtain the attendance and examination of a defence witness should show that the examination of that person was necessary for the establishment of the truth and that the refusal to call that witness was prejudicial to his defence rights (see Guilloury v. France, no. 62236/00, § 55, 22 June 2006). Although it is normally for the national courts to assess the evidence before them, as well as the relevance of the evidence which defendants seek to adduce, there might be exceptional circumstances which could prompt the Court to conclude that the failure to hear a person as a witness was incompatible with Article 6 (see Destrehem v. France, no. 56651/00, § 41, 18 May 2004, and Bricmont v. Belgium, 7 July 1989, § 89, Series A no. 158).

90. In the present case the Court notes that H. was murdered in a flat where he was drinking alcohol with the applicant and L. Nobody else was present in the flat at that time. Therefore, the evidence given by L. was of particular importance for the establishment of the truth.

91. Despite the importance of that witness, the domestic courts did not call and question him and relied on his statements made during the pre-trial investigation. In so doing, the courts did not give any reason as to why L. did not need to be examined in court. In the absence of any such reason, the Court is unable to conclude that the failure to examine L. in person was justified.

92. Moreover, the applicant, having denied any involvement in the crime, complained before the domestic courts that L. might have been the real perpetrator. This allegation, which was a pertinent one, required the domestic courts to address it in detail and to dispel any doubts as to the reliability of L.’s statements. However, the courts ignored this contention without providing any satisfactory explanation.

93. Even assuming that the courts refused to examine L. for the reason that the applicant had been given a chance to cross-examine that witness during the confrontation carried out by the investigator, the Court notes that that confrontation was carried out at an earlier stage of the proceedings when the applicant was not assisted by defence counsel. The confrontation was only recorded on paper, which would not have allowed the judges to assess the demeanour of the parties to the confrontation and properly form their own opinion as to the reliability of the statements made during that investigatory action (see, mutatis mutandis, Vladimir Romanov v. Russia, no. 41461/02, § 105, 24 July 2008).

94. The above considerations are sufficient for the Court to conclude that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention.

V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

95. The applicant complained under Article 6 § 1 of the Convention that the courts had convicted him on the basis of evidence obtained through ill-treatment. The applicant also complained that he had not been given sufficient time to prepare for the trial, that his legal-aid lawyer had not represented him effectively, and that his request for extraordinary review of the case had been refused unfairly. The applicant relied on Article 6 §§ 1 and 3 (b) and (c) of the Convention.

96. The Court has rejected the applicant’s allegations of ill-treatment as inadmissible. Accordingly, no issue under Article 6 of the Convention can arise in connection with his contention that he was convicted on the basis of evidence obtained through ill-treatment. This complaint is therefore manifestly ill-founded.

97. The Court has examined the remainder of the applicant’s complaints and considers that, in the light of all the material in its possession and in so far as the matters complained of are within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. Accordingly, the Court rejects them as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION

98. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A. Damage

99. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage.

100. The Government maintained that the claim was unsubstantiated and excessive.

101. The Court considers that the distress and frustration caused to the applicant cannot be compensated for by the mere finding of violations of Article 6 §§ 1 and 3 (c) and (d) of the Convention. Having regard to the nature of the issues in the present case and making its assessment on an equitable basis, the Court awards the applicant EUR 3,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

B. Costs and expenses

102. The applicant also claimed EUR 200 for costs and expenses incurred before the domestic authorities and the Court.

103. The Government considered this claim unsubstantiated.

104. In the present case, no evidence has been presented concerning the costs and expenses claimed. The Court therefore rejects the claim.

C. Default interest

105. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1. Declares the complaints concerning lack of access to a lawyer (Article 6 §§ 1 and 3 (c) of the Convention) and the courts’ failure to examine a witness (Article 6 §§ 1 and 3 (d) of the Convention) admissible and the remainder of the application inadmissible;

2. Holds that there has been a violation of Article 6 §§ 1 and 3 (c) of the Convention;

3. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;

4. Holds

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 15 November 2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekDean Spielmann
RegistrarPresident

Full & Egal Universal Law Academy